Cease to be a family member of Eea.

[Lolik123457]

Dear forum experts and forum readers Iz need help.I am non Eu residence been married for almost 8 years with my Eea wife,my father came to visit us but after we decided that dad stay with us,he sold his property back home and help me to buy house in uK.We applied for EEa2 and been issued residence card for 5 years which will expire on 2017.Me and my wife can't stay together no more and ready to start divorce proceeding,my worry only what will happen with my dad now?he is in his 60 years old he doesn't have house no more as helped new family(me and my wife).I don't have money to buy for him flat back home,and I am the only son who look after him.He works part time.My question are shall I wait untill 2017 and apply for Eea4 or shall I apply when I divorce?Solicitor I been to said as soon as I divorce My dad has to leave the country but I can't

[Miracle need]

So sorry to listen that, its mistake to sale back country home. But same like your father helped then same you help him too. You may sell your UK home to help him if he need to leave UK. Before divorce you should name that property to your father name to avoid further damage if EU national start claim that property.
Never trust eu national and their promises because they all change like chameleon perhaps because of receiving same in inheritance.

[Lolik123457]

Thanks for kind reply,but unfortanetely even if I sell my house I will come out without a penny,as I paid only interest as can't effort to pay interest.also I remortgage and bought car car for my wife.when my dad sold the property it was 20-25£k now it's 100£ back home.and I can't buy it anyway,as my income not that big.but how can my dad stay in UK with me I thought he can apply under the category extended family member,who ceased treaty rights in Uk? Pls advice needed!

[el patron]

Dear forum experts and forum readers Iz need help.I am non Eu residence been married for almost 8 years with my Eea wife,my father came to visit us but after we decided that dad stay with us,he sold his property back home and help me to buy house in uK.We applied for EEa2 and been issued residence card for 5 years which will expire on 2017.Me and my wife can't stay together no more and ready to start divorce proceeding,my worry only what will happen with my dad now?he is in his 60 years old he doesn't have house no more as helped new family(me and my wife).I don't have money to buy for him flat back home,and I am the only son who look after him.He works part time.My question are shall I wait untill 2017 and apply for Eea4 or shall I apply when I divorce?Solicitor I been to said as soon as I divorce My dad has to leave the country but I can't

Your solicitor is wise to caution you about your father's position post divorce. When did your Dad come to the UK?

[Lolik123457]

My dad came in 2012,but I spoke with different lawyer and he said that even I divorce with my wife it won't effect my dad status,and he can carry on leaving untill his residency expire and only I have to show that I work,I don't know which of solicitor right? As I know that as soon as I received my permanent residency I lose European rights.pls advice needed as spent already 200 pounds and both solicitors told different story.

[el patron]

My dad came in 2012,but I spoke with different lawyer and he said that even I divorce with my wife it won't effect my dad status,and he can carry on leaving untill his residency expire and only I have to show that I work,I don't know which of solicitor right? As I know that as soon as I received my permanent residency I lose European rights.pls advice needed as spent already 200 pounds and both solicitors told different story.

“Family member who has retained the right of residence”
10. (1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

..... ...

(5) A person satisfies the conditions in this paragraph if—

(a)he ceased to be a family member of a qualified person or of an EEA national with a permanent right of residence on the termination of the marriage or civil partnership of that person;.
(b)he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;.
(c)he satisfies the condition in paragraph (6); and.
(d)either—.
(i)prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;.
(ii)the former spouse or civil partner of the qualified person has custody of a child of the qualified person or the EEA national with a permanent right of residence;.
(iii)the former spouse or civil partner of the qualified person or the EEA national with a permanent right of residence has the right of access to a child of the qualified person or the EEA national with a permanent right of residence, where the child is under the age of 18 and where a court has ordered that such access must take place in the United Kingdom; or.
(iv)the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting..
(6) The condition in this paragraph is that the person—

(a)is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or.
(b)is the family member of a person who falls within paragraph (a)..

Above is the relevant portion of the EEA Regulations, the final sentences (6(a) & (b)) is what your father will seek to place reliance upon (as I read it).

[Lolik123457]

Thank you for your kind reply,my father did live with us more than a year,he still lives with me.i been married for almost 8 years.is that mean that he can apply under paragraph 6a,but on what category and when to apply?after 2017 when his resident will expire or now,as I will be applying for naturalisation soon is it effect my father right? Thanks so much

[el patron]

Thank you for your kind reply,my father did live with us more than a year,he still lives with me.i been married for almost 8 years.is that mean that he can apply under paragraph 6a,but on what category and when to apply?after 2017 when his resident will expire or now,as I will be applying for naturalisation soon is it effect my father right? Thanks so much

The current residence card will be invalid post divorce, reapply for a further 5 year card from date of divorce, he applies for pr in 2017. I don't see your naturalisation as relevant either way.

[Lolik123457]

My naturalisation will effect my dad status as he only can apply after 65 years old,that's what solicitor said,that if I will apply for naturalisation my dad loses his right under eu rules. So if I apply after divorce what documents should be submitted,my ex employment,and his one or mine? Also does he need medical cover? Thanks.

[el patron]

My naturalisation will effect my dad status as he only can apply after 65 years old,that's what solicitor said,that if I will apply for naturalisation my dad loses his right under eu rules. So if I apply after divorce what documents should be submitted,my ex employment,and his one or mine? Also does he need medical cover? Thanks.

I do not understand what difference being 65 makes to your Dad in an EEA application and how his status would be affected by you becoming British. The EEA regulations I quote depend on the retained status he acquires via the application he makes after your divorce, in the case of (6) (a) it is evidence of his exercise of treaty rights that should be evidenced. I suppose if he was relying upon (6) (b) your naturalisation may have some relevance, but I would still argue that you would already have your pr and his derived rights should not be voided by your naturalisation, could be an appeal point though! However as he is a worker it is a (6) (a) application and your naturalisation is not relevant.

[Lolik123457]

Alright than you for explaining to me,as again lawyer told me that when I got my citizenship my dad automatically can't apply under EU rules and can not apply form eea2 or eea4.he has go back to home country wait untill he reach 65 years old and after I can invite him as extended family of a british national.I surprise how solicitors can charge for such advice.thank you so much for your help.

[Obie]

It is a very unfortunate state of affair.

The lawyer is clearly wrong and appears to have no understanding of how the regulations operates.

If you are able to secure retention of residence, and if it can be shown that your dad is dependent on you , then I see no reason why he will be unable to retain his rights.

[el patron]

It is a very unfortunate state of affair.

The lawyer is clearly wrong and appears to have no understanding of how the regulations operates.

If you are able to secure retention of residence, and if it can be shown that your dad is dependent on you , then I see no reason why he will be unable to retain his rights.

Hi Obie,

does it not read from (6) (a) that as his dad is a worker, dad then has sufficient standing to retain rights without depending on the former spouse (his son) also retaing rights, essentially I believe the dad can claim retained rights independently from his son's claim as a result of the cessation of his son's marriage to to the EEA national.

[Obie]

It is a very unfortunate state of affair.

The lawyer is clearly wrong and appears to have no understanding of how the regulations operates.

If you are able to secure retention of residence, and if it can be shown that your dad is dependent on you , then I see no reason why he will be unable to retain his rights.

Hi Obie,

does it not read from (6) (a) that as his dad is a worker, dad then has sufficient standing to retain rights without depending on the former spouse (his son) also retaing rights, essentially I believe the dad can claim retained rights independently from his son's claim as a result of the cessation of his son's marriage to to the EEA national.

I don't think 10(6) (a) is a Standalone provision, it has to be read consistently with 10(5).

If the son is able to retain a right of residence then father will, otherwise the father cannot secure an independent right.

[el patron]

It is a very unfortunate state of affair.

The lawyer is clearly wrong and appears to have no understanding of how the regulations operates.

If you are able to secure retention of residence, and if it can be shown that your dad is dependent on you , then I see no reason why he will be unable to retain his rights.

Hi Obie,

does it not read from (6) (a) that as his dad is a worker, dad then has sufficient standing to retain rights without depending on the former spouse (his son) also retaing rights, essentially I believe the dad can claim retained rights independently from his son's claim as a result of the cessation of his son's marriage to to the EEA national.

I don't think 10(6) (a) is a Standalone provision, it has to be read consistently with 10(5).

If the son is able to retain a right of residence then father will, otherwise the father cannot secure an independent right.

this point interests me, on reading 10 (5) I see no inconsistency... I could be wearing the wrong glasses though!

[Obie]

By virtue of 10(5)(c) a person has to show they meet the requirement of 10(6) (a) or(b).

Therefore meeting the requirement of 10(6) (a) or 10(6)(b) is not sufficient for a person to maintain their rights of residence.

They will also need to show that 10(a) (b) and the optional provision of 10(d) are met inorder retain their right of residence.

[el patron]

By virtue of 10(5)(c) a person has to show they meet the requirement of 10(6) (a) or(b).

Therefore meeting the requirement of 10(6) (a) or 10(6)(b) is not sufficient for a person to maintain their rights of residence.

They will also need to show that 10(a) (b) and the optional provision of 10(d) are met inorder retain their right of residence.

yet it states marriage... of that person and not marriage to that person (in 10 (5) (a))

[Obie]

Your point being.

[el patron]

Dad is a worker, he can apply for retained rights on termination of his son's marriage to EEA national

[Obie]

Dad is a worker, he can apply for retained rights on termination of his son's marriage to EEA national

Well I did not dispute that , if I remembered correctly .

All I said is , the retention of right by the father is on the basis that he constitute a pre existing family of his son, who benefit from the retention of a right of residence .

[el patron]

Dad is a worker, he can apply for retained rights on termination of his son's marriage to EEA national

Well I did not dispute that , if I remembered correctly .

All I said is , the retention of right by the father is on the basis that he constitute a pre existing family of his son, who benefit from the retention of a right of residence .

yes but essentially I'm saying the father fits all the boxes, son will have no need to claim retained rights and dad can go ahead and apply without any need for the son to do so.

[Lolik123457]

Thank you guys for all your reply,this forum is great and you can get free advise from people like yourself.I am very pleased,thank you again,and best wishes for all of you.Just to clarify as I don't understand structure of law.Can pls someone explain to me so my dad can apply under his status to show that he is worker,and also he can apply under my status that he lived with me for the whole time and He is my dependant?I again phoned lawyer and clarify that as soon as I receive my divorce my permanent residence will be not relevant on my dad and only we can apply for his status while I married(that's third lawyer I phoned).Kind Regards.

[Obie]

Which part of the country are these lawyers giving this advise based?

There advise is clearly flawed.

[Lolik123457]

Thank for all replies you are great! But I so far from law structure,and only understand basic language,so far I understand my dad can apply either way,on the ground that he is a worker and on the ground that he still dependant on me.What form I shall pick,what status he will get another 5 years residence card or Permanent residence?and when best time to apply,now or when his residence card will expire?also I do understand even if I will apply for citizenship it will not effect my father as my rights still will be valid under European rules,even I divorce with my wife.sorry to asking to many question,otherwise I totally confused.thanks

[Lolik123457]

Which part of the country are these lawyers giving this advise based?

There advise is clearly flawed.

All lawyers from Uk London,one based in Waterloo,one firm in Covent Garden and the third one is in Woolwich barrister from Chambers.